Supreme Court starts new term shorthanded
BY LYDIA WHEELER - 10/01/18 06:00 AM EDT 105
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The Supreme Court starts its new term on Monday and it will be short-handed on the bench -- one of several challenges the justices are facing along with cases dealing with limits on the death penalty, the separation of church and state and employment discrimination.
Sexual assault allegations against Brett Kavanaugh, President Trump’s nominee to succeed former Justice Anthony Kennedy, have already delayed his Senate confirmation and could ultimately sink his nomination. But with or without him the court will be back in session.
Whoever is confirmed to replace Kennedy will miss the first oral arguments of the term, but could still participate in deciding those cases at a later date by listening to audio recordings of the arguments and reading transcripts.
Court watchers say this term as a whole is packed with potential.
“The accurate caption of this term is the calm before the storm,” Irv Gornstein, executive director of Georgetown’s Supreme Court Institute, said recently while speaking at Georgetown Law. “We’re headed for a whole new world, and the only questions are: How far are we going to go and how fast are we going to get there?”
In the pipeline are petitions and lower-court cases that justices may agree to hear in 2019, including a challenge to the constitutionality of President Trump’s decision to end the Deferred Action for Childhood Arrivals program that protects from deportation about 800,000 young adults who were illegally brought to the U.S. by their parents.
The court does not begin the term with its full caseload. Instead, it accepts cases and petitions throughout the approximately nine-month term.
Here’s a look at some of the top cases.
Cruel and unusual punishment
In its first week back from summer recess, the court will hear an appeal from an Alabama man on death row.
Vernon Madison, 67, is pushing the court to overturn his death sentence because he now has a mental disability and says he no longer remembers shooting a police officer to death in 1985. Madison suffers from vascular dementia after multiple serious strokes.
He is invoking the Eighth Amendment’s ban on cruel and unusual punishment by challenging whether the state can put someone death who no longer remembers the capital crime they committed due to a mental disability.
The court agreed to stay Madison’s execution on Jan. 25, the day he was scheduled to be put to death. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said then that they would have denied the request.
The case, Madison v. Alabama, will be argued on Tuesday.
Church and state
Waiting in the wings is a case that challenges the separation of church and state.
The court has been asked to decide whether a 40-foot cross erected 93 years ago as a memorial for residents of Prince George’s County, Maryland, who died in combat in World War I, must be removed or altered.
The Fourth Circuit Court of Appeals said the memorial violates the separation between church and state, as well as the Establishment Clause of the Constitution, which bars the government from establishing one religion because the Latin cross is the core symbol of Christianity.
But the Maryland-National Capital Park and Planning Commission argues the appeals court got it wrong.
“This court has time and again made clear that the Establishment Clause ‘does not require eradication of all religious symbols in the public realm,’” the commission argued in its petition.
The justices have not yet decided whether to take the case. The petition was scheduled to be reviewed at their conference last week, but a decision has not yet been announced.
The case is Maryland-National Capital Park and Planning Commission v. American Humanist Association.
Discrimination in employment
Two separate cases challenging whether civil rights laws banning sex discrimination in employment cover sexual orientation, and a third case challenging whether those laws cover people who are transgender, could all come before the court this term.
The first case, from the 11th Circuit, centers on Gerald Lynn Bostock, a child welfare services coordinator for a juvenile court system who says he was falsely accused of mismanaging funds and subsequently fired by the county for being gay. The appeals court affirmed a lower court’s decision to dismiss his claims, saying it has previously held that being fired for homosexuality is not prohibited by Title VII of the Civil Rights Act of 1964.
The second case, out of the Second Circuit, centers on a now-deceased skydiving instructor who said he was fired by his employer Altitude Express Inc. for being gay. A full panel of judges on the Second Circuit held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for the purposes of Title VII.
The third case is an appeal from a Michigan funeral company home that the Sixth Circuit ruled unlawfully discriminated against its funeral director, Aimee Stephens, by firing her after she announced she was transgender and would begin dressing as a woman at work.
The attorney for the funeral home has asked the court to consider all three cases at an Oct. 26 conference meeting.
Legislative powers
The court this week will also hear arguments in a case that could disrupt the regulatory state.
In Gundy v. United States, the court will revisit the nondelegation doctrine, a rarely enforced principle that prohibits Congress from transferring its legislative powers to agencies without an “intelligible principle” or guidance on which to base its regulations.
The dispute centers on Herman Gundy, who was indicted in 2013 for failing to register as a sex offender in Maryland and New York under the Federal Sex Offender Registration and Notification Act of 2006.
Gundy was convicted of raping an 11-year-old girl in 2005, and while he was serving time for another charge the Bureau of Prisons transferred him from Maryland to Pennsylvania and later from Pennsylvania to a halfway house in New York, where he remained after he was released.
Gundy argues the registration requirements don’t apply to him because he was convicted in 2005 -- before Congress passed the sex offender law -- and the nondelegation doctrine prohibited Congress from allowing the U.S. attorney general to retroactively apply the law.
If the court takes a broad view of the nondelegation doctrine, it could lead to a host of cases challenging the power of federal agencies to issue regulations. Experts, however say the court is more likely to issue a narrow ruling that finds the delegation of powers in the sex offender registry law went too far.
“There’s no reason to think there’s a majority on the court that’s ready to upend the entire regulatory system of the U.S., but everyone will be watching to see what kind of hints or clues the court gives as to whether this is the beginning of a kind of new scrutinizing of the degree of delegation and degree of guidance that goes with it,” said Stephen Wermiel, a professor of practice at American University Washington College of Law.
Partisan gerrymandering
The court could be asked to determine again this term if politicians can draw voter districts that give one political party and edge over another.
The court punted on two similar cases last term, sending them back down to lower courts to re-examine if the plaintiffs had standing. But the challenge out of North Carolina has already made its way back.
Republican officials are now appealing a second decision from a three-judge district court panel to strike down the maps as an unconstitutional partisan gerrymander. They are expected to file their request to the Supreme Court on Monday.
--This report was updated at 8:08 a.m.
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